State v. M.S.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,v.M.S.,*FN1 DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-01-0018.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 14, 2008

Before Judges Lintner, Graves and Sabatino.

On October 14, 2005, following a jury trial, defendant M.S. was acquitted of the murder of her son, Daniel, who was born on September 7, 2001, but she was convicted of the lesser-included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4 (count one). Defendant was also convicted of second-degree endangering the welfare of her son, Daniel, N.J.S.A. 2C:24-4 (count two), and second-degree endangering the welfare of her son, Joel, Daniel's twin brother, N.J.S.A. 2C:24-4 (count three). Co-defendant A.S. (defendant's paramour) was charged in the same indictment with two counts of second-degree endangering the welfare of a child, but he was not tried with defendant. Defendant was sentenced to serve a twenty-three-year prison term, subject to the eighty-five percent parole bar of the No Early Release Act, N.J.S.A. 2C:43-7.2. On count two, the court imposed a concurrent seven-year prison term, and on count three defendant was sentenced to a consecutive eight-year term. Appropriate fees, penalties, and assessments were also imposed.

Defendant presents the following arguments on appeal:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO SEVER THE COUNTS OF THE INDICTMENT RELATING TO DANIEL FROM THE COUNT RELATING TO JOEL, THEREBY DENYING THE DEFENDANT A FAIR TRIAL.

THE JUDGE MISINFORMED THE JURORS THAT THEIR ROLE WAS TO DETERMINE THE "GUILT OR INNOCENCE" OF DEFENDANT, THEREBY REDUCING THE STATE'S BURDEN IN PROVING DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT. (NOT RAISED BELOW).

POINT IV

THE SENTENCE IMPOSED WAS EXCESSIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

After considering these arguments in light of the record and the applicable law, we affirm.

Defendant was the mother of twin boys, Daniel and Joel, who were born on September 7, 2001. Their father was A.S. Defendant was also the mother of Carlos, who was four years old at the time of the twins' birth.

The twins were delivered by Cesarean section. Although defendant's health was fine immediately after the surgery, the next day she developed acute respiratory distress syndrome, a serious disease with a thirty-five to forty-percent mortality rate. Defendant was intubated to help her breathe, and to stop her from pulling out the tube, she was put in a medically-induced coma. She remained in the coma until September 26, 2001, and she was released from the hospital on October 2, 2001. Defendant's parents took care of the children while she was hospitalized.

On October 15, 2001, Dr. Kemi Alli, a pediatrician, examined Daniel and Joel during a well-baby visit. Dr. Alli found nothing medically unusual in either child, and defendant did not mention any incidents in which the children might have been hurt.

On October 18, 2001, defendant took Daniel to the emergency room at Capital Health Systems, because he "seemed to have discomfort in [his] right left." Daniel was transferred to Children's Hospital in Philadelphia where he was seen by Dr. Cindy Christian, a pediatrician and the director of the Child Abuse Program. After performing an examination and reviewing a series of "x-rays and CAT scans and MRIs," Dr. Christian determined that Daniel had two skull fractures, multiple rib fractures on both sides of his chest, and a fractured femur. Dr. Christian estimated the skull fractures were two weeks old, but she estimated Daniel probably "broke his leg sometime on or about October 17th," and the rib fractures were "new." Dr. Christian also concluded the injuries were the result of "repeated trauma and injury." When Dr. Christian examined Joel, she determined he also had skull fractures on both sides of his head and fractures of two ribs. Dr. Christian estimated Joel's head injuries were less than three weeks old, and she diagnosed him with "inflicted injury."

On October 23, 2001, defendant gave a statement to Ewing Township police. In her statement, defendant explained that on October 12, 2001, she was holding both babies in her arms when she went to take a shower. Joel fell into the tub and hit the back of his head; when she bent down to pick him up she blacked out, causing her to drop Daniel outside of the tub. Then her entire body fell on top of Daniel. She did not seek medical help at the time because both babies seemed fine. However, at defendant's trial Dr. Christian testified that defendant's statement to the police was not consistent with the injuries suffered by the children because her statement did not "explain all of the injuries to the babies," especially Daniel's broken leg, which "was broken on or about October 17th when the baby became symptomatic of a broken femur."

After receiving a referral from Dr. Christian, the Division of Youth and Family Services (DYFS) placed the three children in foster care because defendant's parents were unsuitable for placement. Initially, all three children were placed in the home of a family friend, but shortly thereafter they were placed with the Cruz family. Daniel had acute bronchitis and asthma while with Cruz family, but the children were healthy otherwise. Ms. Cruz denied that Carlos was rough with his brothers.

While the children were residing with Ms. Cruz, defendant worked with DYFS and their contracted agent, the Children's Home Society (CHS), toward reunification. Carlos was reunited with his mother in October 2002, and the twins were reunited with her in December 2002.

On March 25, 2003, defendant called emergency medical technicians saying that Joel had fallen and was having difficulty breathing. Defendant told EMT Tara Holbrook that she found Joel "on the landing at the bottom of the stairs crying." Holbrook found Joel in an upstairs bedroom with a bruise above his right eye, abrasions over his left eye, and "a severe bruise to his right thigh." Joel was admitted to the Robert Wood Johnson Hospital and, based on Joel's hospital records, Dr. Elizabeth Hodgson, the co-medical director of the Dorothy B. Hersh Regional Child Protection Center, testified that Joel's injuries were inconsistent with a fall down the stairs.

On June 4, 2003, shortly after 8:00 p.m., James Lewis of the East Windsor Police Department received a 911 call from a "very excited" person from defendant's home phone number. The caller said that a baby, later identified as Daniel, was not breathing. Lewis attempted to instruct defendant on CPR, but was never able to determine whether the child was breathing.

Ms. Pineda, a friend and former relative of defendant's, lived in the same apartment complex. According to Pineda, at 8:15 p.m., she received a call from defendant, who was screaming. Pineda immediately went to defendant's apartment and found Daniel on the counter of the bathroom with defendant breathing into his mouth. Daniel looked purple. Defendant had the phone in her hand but then handed it to Pineda and, as the operator told Pineda what to do, she relayed the instructions to defendant. Pineda never saw defendant doing a chest compression on Daniel. Pineda testified defendant told her that Daniel "was playing in the room with Carlos and she thought he could have fell, but she didn't know what had happened to him."

Meanwhile, Scott Brown, an East Windsor Police Officer, arrived at the home. He saw defendant standing over Daniel, who was lying on a towel on the bathroom counter. Daniel was cool to the touch and not breathing. Brown did not see defendant performing chest compressions. Brown performed CPR after delivering two pats to Daniel's back to clear his airways. Fluids came out of Daniel's mouth. Brown continued CPR until paramedics arrived and set up oxygen for Daniel. Brown noticed bruising on Daniel's groin and lower abdomen, and red marks on his head.

Ryan Jordan, a paramedic, responded at 8:23 p.m., and found Daniel in cardiac arrest. Daniel was not breathing and he had no pulse. His pupils were fixed and dilated, which meant that there was minimal brain activity. Brown was correctly administering CPR, but Jordan took over. Jordan intubated Daniel and inserted an intra-osseous line to give him fluids. En route to the hospital, Jordan administered advanced life support.

When Daniel arrived at the hospital, Dr. Seema Tiku, the emergency room pediatrician, and her team, worked on Daniel for twenty minutes before declaring him dead at 9:25 p.m. Dr. Tiku observed bruising to the abdomen and right ear, and a possible burn mark on the top of Daniel's right hand. Daniel also had multiple bruises "around the spine, the midback to lower back, thoracic area. . . . [and] in both groin areas."

Back at defendant's apartment, Officer Brown asked defendant what had happened to Daniel, and she told him she was home alone in the living room watching television when she called out to Daniel. But Daniel did not answer, and then she heard Carlos tell Daniel that she was calling. Because there was still no response, defendant went into the bedroom and found Daniel lying on his stomach on the floor, "looking up at her like he wanted something." When Daniel stood up, she took him by the hand and walked with him to the living room. After she sat down on the sofa, she went to pick Daniel up but she noticed milk coming out of his nose. She thought he was going to vomit, so she took him into the bathroom. He went limp and that was when she called 911.

Officer Brown had a second conversation with defendant, at which time she gave the same account, but added that when she thought Daniel was going to vomit, she removed his clothing and put him in the bathtub to try to contain the mess. After he stopped breathing, she took him out of the tub and put him on a towel on the counter. When Brown was asked to describe defendant's demeanor he testified: "She was very calm, not emotional."

East Windsor Police Detective Harry Marshall corroborated Brown's account of defendant's story. In addition, he testified defendant said she last saw the children at 6:30 p.m., when they were playing in the bedroom. She was watching "The Color Purple" on television and when it was over, she called Daniel. Marshall reported that the bedroom was very neat; the cords were wrapped neatly around the PlayStation, the bed was made, and the toys were in their containers. When Marshall asked defendant what the children had been playing with she told him that "Carlos must have cleaned [the toys] up."

Defendant and A.S. were taken by the police to the hospital, where they were told Daniel had died. Detective Marshall then took defendant to the police station for questioning, and she gave a videotaped statement, which was played for the jury.

The next day, Marshall went back to the house to check for vomit near the sofa, but he found none. He also determined that "The Color Purple" had been broadcast on June 4, 2003, at 12:00 p.m., and was only 153 minutes long.

Dr. Raafat Ahmad, the Mercer County Medical Examiner, performed an autopsy on Daniel on June 6, 2003, and did a follow-up on June 9. Dr. Ahmad found that externally, Daniel had a deep burn mark on his right hand that was between four and seven days old. He had bruises on his head, groin, and upper and lower abdomen. He had bruising on his upper back and mid back, two deep abrasions on his forehead, contusions near his right ear and inside of his ear, a scrape behind his right ear, a bruise on his left shoulder and arm, with a scar at his elbow, bruising under his upper lip, an abrasion at his nose, and a contusion on his chin. The contusions were inflicted just before death.

Internally, Daniel had thirty cubic centimeters of fresh blood in his right chest cavity and eighty cubic centimeters of fresh blood in his pericardial cavity. He had a laceration of the junction of his inferior vena cava and his right atrium. His right ventricle had innumerable contusions. His right lung had blood clots in it, and there were hemorrhages in the chest wall. There were bruises on Daniel's lower intestines and blood in his abdominal cavity. There were eight areas of bruises underneath his scalp.

Dr. Ahmad determined that the heart laceration's massive hemorrhaging caused Daniel's death. The fatal injuries were inflicted between twenty minutes and one hour before death. Dr. Ahmad believed Daniel's death was a homicide.

Dr. Hodgson, who was qualified at trial as an expert in pediatrics and the diagnosis of inflicted trauma, attended the second day of Daniel's autopsy and later examined the records related to him. She determined that Daniel suffered inflicted blunt force trauma to multiple areas of his body, and the trauma to his chest was so severe that it ruptured his vena cava from its juncture at the heart. According to Dr. Hodgson, Daniel's injuries could not have resulted from falling off a bed, nor could they have been inflicted by a five-year-old child.

Dr. Hodgson also examined Joel on June 5, 2003. She found that Joel had swelling in his scalp and slight abnormalities in his liver. He had significant soft tissue swelling on the right side of his head, above his ear and into his temple, and a significant abrasion covering a good portion of the right side of his face. He had a deep purple bruise on his right ear, which had been inflicted within the previous forty-eight hours. He had a bruise on the middle of his right jaw bone, a bruise on his lower abdomen, and pink irritation over his top left eyelid. He had bruising on his hip. Both of his ears were infected, and he had several scars about his body.

Dr. Hodgson testified that the significant number of unexplained bruises on unusual parts of Joel's body were not injuries one would expect with a typical toddler. The significant soft tissue swelling and untreated abrasions were consistent with a blunt injury to the side of the head. She stated Joel had inflicted injuries to his head, face, lower abdomen, and left backside. His facial injuries were not consistent with his falling down a concrete step, as defendant apparently contended.

Dr. Christian, the pediatrician at Children's Hospital in Philadelphia who examined Daniel when he was injured in October 2001, reviewed Daniel's autopsy report and determined that he died of inflicted multiple blunt force injuries. The bruises on his back were not the result of back blows from an attempt to clear his airway during rescue efforts. Dr. Christian concluded that Daniel had too many injuries to be accounted for by any kind of CPR, and the injuries were in places not related to CPR. She also testified that scientific studies have shown that CPR rarely results in injury to a child, whether given by paramedics or lay people. Any injury that does result from CPR is usually minor, such as an abrasion or a bruise, not the massive blunt force trauma Daniel suffered.

Dr. Frederick Zugibe, a former medical examiner and qualified expert in forensic pathology and the administration of CPR, testified on behalf of defendant. After reviewing Daniel's medical records, he agreed with the other experts that Daniel's death was caused by a rupture of the heart and injury to the lungs. But he also testified the injuries which caused Daniel's death could have been caused by improperly performed CPR.

In her first point, defendant argues she did not receive a fair trial because the court denied her motion to sever count three of the indictment--pertaining to Joel--from the two other counts pertaining to Daniel. Joinder of offenses is governed by Rule 3:7-6, which provides in part:

Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan.

Joinder is mandatory when multiple criminal offenses are "based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction and venue of a single court." R. 3:15-1(b). However, Rule 3:15-2(b) vests a trial court with discretion to order separate trials if joinder would unfairly prejudice the defendant.

Central to the inquiry is whether, assuming the charges are tried separately, evidence of the offenses sought to be severed would be admissible under N.J.R.E. 404(b) in the trial of the remaining charges. State v. Pitts, 116 N.J. 580, 601-02 (1989). If the evidence would be admissible at both trials, then the trial court may deny the severance motion because the defendant would not suffer any more prejudice if the counts were tried jointly than if they were tried separately. State v. Urcinoli, 321 N.J. Super. 519, 542 (App. Div.), certif. denied, 162 N.J. 132 (1999).

Under N.J.R.E. 404(b):

[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

The danger N.J.R.E. 404(b) "seek[s] to prevent is that a defendant will be prejudiced by evidence of other acts such that a jury will convict because he or she is a bad person disposed to commit crime." State v. Moore, 113 N.J. 239, 275 (1988). In other words, the rule "precludes the admissibility of evidence of other crimes to prove [a] defendant's propensity toward criminal conduct." Pitts, supra, 116 N.J. at 602. The Supreme Court has characterized N.J.R.E. 404(b) as a "rule[] of exclusion rather than [one] of inclusion." State v. Nance, 148 N.J. 376, 386 (1997).

The test by which the admissibility of other bad acts evidence is evaluated is found in State v. Cofield, 127 N.J. 328, 338 (1992). In order to be admissible, evidence of other crimes must meet four requirements: (1) it must be relevant to a material issue that is genuinely disputed; (2) it must be similar in kind to that which is charged currently and must have occurred reasonably close in time to the events at issue; (3) it must be clear and convincing; and (4) its probative value must not be outweighed by its prejudice. Ibid.

Prior to trial, defendant moved to exclude evidence of past bad acts regarding Daniel under N.J.R.E. 404(b), and moved to sever the count regarding Joel. The court held a hearing in which witnesses (many of the same ones who testified at trial) testified regarding Daniel's and Joel's previous medical history. Following the hearing, the court gave an oral opinion that incorporated both motions. The court's findings and conclusion included the following:

Applying the Cofield test against the backdrop of [State v. T.C., 347 N.J. Super. 219 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003)] and [State v. Compton, 304 N.J. Super. 477 (App. Div. 1997), certif. denied, 153 N.J. 51 (1998)], I find first that the evidence of the prior incidents is relevant to the issue of intent, that is, whether or not the infliction of the injuries on the children on the date of Daniel's death as well as the time period included in Counts 2 and 3 were accidental, and also to rebut the defendant's claim of accident or use of improper CPR. Therefore, intent is a critical issue.

I also find, and accept, the [S]tate's proposal in its brief that the [S]tate's theory is that the defendant purposely or knowingly caused the death or serious bodily injury that resulted in the death of Daniel . . . by abuse, and evidence of the earlier hospitalization is relevant and admissible with respect to the defendant's intent and also negating the defendant's potential claim of mistake or accident.

Because the defense anticipates calling an expert who will seek to explain the injuries as being consistent with the application of CPR, the actual cause of those injuries is critical, and, therefore, I find that the first prong of the Cofield test is satisfied.

There has been testimony that was presented during the course of the 404(b) hearing. I find that that evidence does, in fact, constitute clear and convincing evidence of the October, 2001 and the March 25th, 2003 injuries. It includes personal observations of medical personnel and police personnel and the results of sophisticated medical testing that was performed.

Finally, there must be a weighing of the probative value versus the apparent prejudice that might result from the admissibility of the earlier incidents. . . .

First of all, I do not find that other less inflammatory evidence can prove the same fact in issue . . . .

I also cite [State v. Townsend, 374 N.J. Super. 25 (App. Div. 2005), aff'd in part, rev'd in part, 186 N.J. 473 (2006)] and [State v. Long, 173 N.J. 138 (2002)] which supports the proposition that evidence of a defendant's prior assaults on a victim is so highly probative of the issues in dispute, that is, intent, absence of accident, that it is seldom excluded because of undue prejudice.

So, in sum, for the reasons I have cited, and following application of the Cofield test, evidence of the incident in October of 2001 as to Joel and Daniel is admissible, as is the injuries to Joel in March of 2003.

In addressing the severance issue, the court incorporated its findings regarding the Cofield test and concluded:

The twins were both the same age. They lived with [M.S.] under the exact same circumstances. And I find under those facts that the injuries to Joel are probative as to the defendant's intent with respect to Daniel, and, therefore, as I've already held, would be admissible. Even prior injuries outside of the time frame of the indictment are admissible.

I've considered particularly the similarity in the injuries incurred in October of 2001 by both of the twins, the nature of the injuries, the specific fact that they were fractures, and that the fractures were on the same parts of the body. I incorporate my 404(b) decision in denying the defense motion to sever Count 3 for the reasons previously stated.

Defendant contends the evidence of the acts against Joel were not admissible because the evidence did not pass the first and fourth prongs of the Cofield test. Defendant does not address, and therefore impliedly concedes, that the second and third prongs were met.

"In criminal prosecutions, New Jersey courts generally admit a wider range of evidence when the motive or intent of the accused is material." State v. Covell, 157 N.J. 554, 565 (1999). Included in that are "evidentiary circumstances that tend to shed light on a defendant's motive and intent or which tend fairly to explain his actions, even though they may have occurred before the commission of the offense." Ibid. (internal quotations omitted).

In Covell, the defendant was charged with luring eight-year-old A.P., but he contended he was just in his car waving her past him, not waving for her to get into the car as she alleged. Id. at 559. The issue was whether his statement to police officers about an alleged prior act of lewdness that occurred sixteen months before the offense at issue was properly admitted into evidence. Ibid. In his statement, defendant said he had "'a problem with girls,'" that he had a "'thing with young girls that [he could not] help,'" and that he was never interested in older women, just teenaged girls. Id. at 561. The court analyzed the evidence under the Cofield test and determined that it was relevant to the issue of what the defendant's purpose was in beckoning at A.P., an essential element to convict the defendant of luring. Id. at 567.

In State v. Oliver, 133 N.J. 141, 145 (1993), the defendant was convicted of sexually assaulting two different women, A.S. and A.D. The defendant and the victims had been close friends for many years, and the defendant lured the women to his third-floor room while other family members were present, engaged in conversation with the women, drank some beer, then used force to cut off the victims' air supply until they agreed to have sex with him. Id. at 145-48. At a joint trial, the State introduced the testimony of three other women who claimed the defendant had sexually assaulted them under similar circumstances. Id. at 148.

The Supreme Court held the evidence of prior crimes was properly admitted as evidence of the feasibility of the assaults, given that there were other people in the house, defendant's use of pretext, and defendant's intent, that was, whether he actually believed the victims had freely given him permission for intercourse. Id. at 151. The defendant put his intent at issue when he claimed the alleged victims consented, therefore the State could introduce evidence to disprove the defendant had that state of mind. Id. at 155. However, the Court also determined that the prejudice of the evidence outweighed the probative value, and that evidence of the other crimes should be limited to showing the feasibility of the crimes and the defendant's use of pretext. Id. at 156.

In a case not cited by either party, United States v. Woods, 484 F.2d 127 (4th Cir. 1973), cert. denied, 415 U.S. 979, 94 S.Ct. 1566, 39 L.Ed. 2d 875 (1974), the Fourth Circuit dealt with a situation more factually similar to this one than any New Jersey reported case. The defendant was found guilty of murdering her eight-month-old foster son, Paul. Id. at 128. Paul was hospitalized three times after coming into the defendant's care when he gasped for breath and turned blue, a condition called cyanosis. Id. at 129. The government introduced evidence that Paul's death was not accidental, and that he was smothered to death. Id. at 130. The government also showed that for the previous twenty-four years, the defendant had custody of or access to nine children who suffered twenty episodes of cyanosis. Ibid. Seven of those children died, and five had multiple episodes of cyanosis. Ibid.

The court said that it had "no doubt about the relevance of the proof" of the other cyanosis episodes. Id. at 133. "We think also that when the crime is one of infanticide or child abuse, evidence of repeated incidents is especially relevant because it may be the only evidence to prove the crime." Ibid. The court concluded the evidence was admissible under the lack of accident exception to the other-crimes rule, as well as other exceptions not relevant here. Id. at 134. The court found the relevance of the prior incidents clearly outweighed the prejudicial value of the evidence, and therefore, the court admitted evidence of prior incidents of abuse on other children in the defendant's care. Id. at 135.

Given the defense that Daniel's death was an accident brought on by improperly performed CPR, evidence tending to show that both children had suffered inflicted trauma in the past was highly relevant. Therefore, the first prong of the Cofield test was satisfied.

Defendant also contends the fourth prong of the Cofield test was not met because the probative value of the evidence did not outweigh its "devastatingly prejudicial nature of this inflammatory evidence." "Although [the] Court has imposed a stringent standard for the admission of other-crime evidence, our courts have not frequently excluded highly prejudicial evidence under the fourth prong of Cofield." Long, supra, 173 N.J. at 162. "Evidence claimed to be unduly prejudicial is excluded only when its 'probative value is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the issues in the case."

The relevant issue in this case was whether Daniel died by accident or from inflicted trauma. There were no witnesses to the incident other than Daniel, who was dead, and possibly Joel and Carlos, who were too young to testify. The evidence of previous injuries to Joel was highly relevant to establish defendant's intent and to rebut defendant's claim that Daniel's death was caused by improperly performed CPR. And, as noted by the State, the trial court's limiting instruction, which defendant does not challenge, "was detailed, comprehensive, carefully presented, and repeated throughout the proceedings." Thus, we conclude the probative value of the evidence was not outweighed by any possible prejudice to defendant. Therefore, the joinder of the charges relating to Daniel with the charges relating to Joel was appropriate, and the court did not abuse its discretion in denying defendant's severance motion.

In her second point, defendant contends the trial court erred in granting the State's motion to present evidence of her prior abuse of Daniel in October 2001. Specifically, defendant maintains the third prong of the Cofield test was not satisfied because the State did not prove by clear and convincing evidence that the injuries Daniel suffered in the October 2001 incident were inflicted by her. While she concedes that Daniel was injured, she argues his injuries could have (1) been inflicted by Carlos, and (2) occurred while she was still in the hospital and Daniel was being cared for by her parents. Nevertheless, based on the evidence presented at the Rule 404(b) hearing, we are clearly convinced the other people defendant implicates could not have inflicted the injuries to Daniel in October 2001.

Dr. Christian saw Daniel on October 19, 2001, and she testified "that [M.S.] said she had no concern that anybody . . . had hurt the children, so . . . she denied there was any concern of any trauma by anybody, and that would include a sibling." In addition, Dr. Christian testified that defendant admitted "she was the [children's] sole caregiver starting October 2, 2001," and when asked if her opinion of the cause of Daniel's injuries would have changed had she been aware of the history of child abuse by defendant's father, Dr. Christian stated she would not have changed her diagnosis because Daniel, "had injuries that were new when he came into the hospital. And that [confirmed] those injuries were sustained while he was under the care of his mother." Moreover, Daniel and his brother Joel were seen by Dr. Alli on October 15, 2001, "for their routine physical exam" and Dr. Alli testified that "their exam was completely normal" and defendant did not mention "any trauma to the children" at that time.

For these reasons, defendant's explanations of how Daniel might have been harmed by a person other than herself ring hollow. Given the overwhelming physical evidence, the newness and severity of Daniel's injuries, defendant's denial of trauma, and her access to Daniel when he was injured, the court did not err in finding there was clear and convincing evidence that defendant had previously abused Daniel.

Defendant also claims the fourth prong of the Cofield test was not met in that the prejudicial effect of the evidence far outweighed its probative value. She argues the volume of evidence concerning her prior abuse of Daniel was introduced to show a course of abuse that culminated in Daniel's death, and was therefore improper propensity evidence. As previously noted, however, the evidence was not introduced to show a course of conduct or criminal propensity, but rather intent and a lack of accident. For those purposes, the evidence of defendant's prior abuse of Daniel was highly relevant, and the relevance was not substantially outweighed by prejudice. Thus, the Cofield test was satisfied, and the court did not err in admitting the other-bad acts evidence.

In point three, defendant contends for the first time that the court gave an erroneous and prejudicial jury instruction when it told the jury to consider defendant's "guilt or innocence." The State maintains the single and isolated use of the phrase did not constitute plain error. During the jury instructions, the judge stated:

The defendant is entitled to have her guilt or innocence separately considered on each count by the evidence which is relevant and material to that particular charge based on the law as I will give it to you.

Defendant's counsel did not object at the time.

Under Rule 1:7-2:

For the purpose of reserving questions for review or appeal relating to rulings or orders of the court or instructions to the jury, a party, at the time the ruling or order is made or sought, shall make known to the court specifically the action which the party desires the court to take or the party's objection to the action taken and the grounds therefor. Except as otherwise provided by [Rule] 1:7-5 and [Rule] 2:10-2 (plain error), no party may urge as error any portion of the charge to the jury or omissions therefrom unless objections are made thereto before the jury retires to consider its verdict . . . .

In considering a jury charge, plain error is "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970); see also R. 2:10-2.

It is fundamental that "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). Although reviewing courts are ordinarily reluctant to reverse on the grounds of plain error, the court has "repeatedly emphasized that incorrect instructions of law are poor candidates for rehabilitation under the harmless error theory." State v. Weeks, 107 N.J. 396, 410 (1987). Of course, "instructions to a jury . . . . must be examined in their entire context and a decision reached whether in the light of all that was said on the particular subject the charge was erroneous or misleading or prejudicially ambiguous." State v. Brown, 46 N.J. 96, 101 (1965).

In State v. White, 360 N.J. Super. 406, 413 (App. Div. 2003), the court noted the use of the phrase "guilt or innocence" throughout the jury charge. Although the court found that use of the phrase was not reversible error, it stated "the use of the term 'guilt or innocence' should be avoided in the future." Ibid. The court explained:

A jury is asked to consider the evidence and determine whether a defendant is guilty beyond a reasonable doubt. If the jury concludes that the State has not carried its burden of proof, it returns a verdict of not guilty. A verdict of not guilty is not synonymous with innocence; innocence connotes a person free from blame. A not guilty verdict simply means the jury found that the State did not carry its burden of proof. [Ibid.]

In this case, the court's reference to defendant's "guilt or innocence" occurred only once and defendant did not object. In State v. Vasquez, 374 N.J. Super. 252, 265 (App. Div. 2005), we faced an identical situation and concluded there was "no likelihood that the judge's misstatement affected the jury's verdict." We reach the same conclusion here. When the trial court's single reference to defendant's "guilt or innocence" is considered in the context of the entire jury charge, and the totality of the trial, we see no likelihood that the trial court's misstatement affected the jury's verdict. R. 2:10-2.

In her final point, defendant contends her "sentence must be reduced or the matter remanded for resentencing" because her "sentence is predicated on an erroneous weighing of the aggravating and mitigating factors." We do not agree. The trial court's findings of fact regarding the aggravating and mitigating factors were based on competent and credible evidence in the record, the court correctly applied the sentencing guidelines enunciated in the Criminal Code, and in applying the facts to the law, the court reached a conclusion that could have reasonably been made upon a weighing of the relevant factors. See State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Ghertler, 114 N.J. 383, 388-89 (1989). As a reviewing court, we may modify a sentence "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). This is not such a case.

Affirmed.

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